DRAFT CRIMINAL INJURIES COMPENSATION (NORTHERN IRELAND) ORDER 2001

Transcription

1 Research and Library Services Northern Ireland Assembly Research Paper 21/01 9 October 2001 DRAFT CRIMINAL INJURIES COMPENSATION (NORTHERN IRELAND) ORDER 2001 This paper examines NIO proposals for new legislation dealing with criminal injuries compensation, and the background to the making of those proposals. Research and Library Services Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.

2 SUMMARY OF KEY POINTS The Belfast Agreement recognised the importance of victims suffering and declared that an acknowledgement of that suffering was an essential part of reconciliation in Northern Ireland. Victims can be amongst the most socially excluded of citizens. Criminal injuries compensation is currently payable by the NIO where a person has been injured or killed in Northern Ireland as a direct result of violent crime or attempts to prevent crime. In June 1999, the Review of Criminal Injuries Compensation in Northern Ireland, established by the NIO, reported on the fitness for purpose of criminal injuries compensation law, in the light of the experiences of victims of terrorist violence. The Review made 64 specific recommendations. The NIO accepted most of the recommendations, and has now published its proposals for changes to the law. The proposals are in the form of a draft Order in Council providing a basic framework, and a draft Scheme providing greater detail. The NIO intends to implement the draft Order and Scheme by 1 April The main proposed changes include: a tariff for all claims, setting out the compensation attached to specific injuries; a removal of the right to appeal to the courts, and the establishment of an independent Criminal Injuries Compensation Appeals Panel to hear appeals; the withdrawal of paid legal assistance from applicants funding will instead be provided to Victim Support (NI), which will assist victims and their families in making applications; repeal of the provisions that expressly exclude a person from compensation because of engagement in terrorism; the removal of the current requirement that a person claming compensation for mental injury be present at the scene of the crime; provision allowing cases to be re-opened, if the victim s condition changes in a way that would make the original award an injustice; provision allowing compensation even when it cannot be established whether the injury was sustained in Northern Ireland or in the Republic of Ireland; wider eligibility for, and increased amount of, awards in the case of bereavement; and changes to various time limits governing claims for compensation.

3 CONTENTS 1. Introduction The nature of criminal injury compensation Present law and practice...1 Injuries attracting compensation: physical and mental, and death...2 Basis of decisions...2 Time limits...2 Reduction or refusal of compensation...2 The common law assessment of compensation...3 The Compensation Agency and applications for compensation Comparison with GB Review...6 Background...6 Report of the review...6 Recommendations of the Review The proposals...7 A tariff scheme for all claims...8 Compensation to be reduced by other payments...8 Cases may be reviewed or re-opened...8 Uncertainty as to where the injury was sustained...8 Appeals...9 Withdrawal of paid legal assistance, and provision of funding to voluntary organisations to provide funding...9 Wider definition of mental injury...9 Wider eligibility for bereavement awards...9 Time limits...10 Previous engagement in terrorist activity, and previous convictions Other services for victims...10

4 1. INTRODUCTION 1.1 The NIO has published its proposals for a change in the law that provides compensation for those injured as a result of crime. 1.2 The proposals are in the form of a draft Order in Council, the Draft Criminal Injuries Compensation (Northern Ireland) Order 2001 ( the draft Order ), and a draft Scheme that will be made under powers granted by it. The draft Order provides a basic framework, and the draft Scheme provides greater detail. 1.3 This paper, prepared by Research and Library Services, examines the NIO proposals and the background to their being made. 2. THE NATURE OF CRIMINAL INJURY COMPENSATION 2.1 The State is not legally liable for injuries caused by the criminal acts of a person for whom the State is not responsible. Criminal injuries compensation is not therefore something which the State owes to a victim. Instead, it is better viewed as a state recognition of the suffering of victims. It must therefore be distinguished from the payment of damages by the State in respect of the criminal or negligent acts of the servants of the state PRESENT LAW AND PRACTICE 3.1 Criminal injuries compensation is currently governed by the Criminal Injuries (Compensation) (NI) Order 1988 ( the 1988 Order ). 2 Compensation is payable by the Secretary of State in cases where a person has been injured or killed in Northern Ireland as a direct result of violent crime or attempts to prevent crime. The Compensation Agency, an executive agency of the NIO, carries out the Secretary of State s functions in relation to the 1988 Order. 3.2 The 1988 Order provides the only power to pay compensation for criminal injuries a recent decision of the Court of Appeal held that the Secretary of State has no power to make ex gratia payments if compensation is not available under the 1988 Order The 1988 Order provides that compensation will be paid for pain, suffering and loss of amenities caused by the injury; expenses actually and reasonably incurred as a result of the injury; and pecuniary loss resulting from the injury, including loss of earnings arising from incapacity for work As at 31 March 1998, it was estimated that 413 million had been paid out in criminal injuries compensation

5 INJURIES ATTRACTING COMPENSATION: PHYSICAL AND MENTAL, AND DEATH 3.5 Both physical and mental injuries are provided for. Most physical injuries attract compensation. Only if a physical injury is minor i.e. attracting compensation of at least 1000 will no compensation be paid. 3.6 However, mental injuries are treated more restrictively. Compensation is only available if the injury: amounts to a serious and disabling mental disorder; was sustained by virtue of being present when the crime was committed; and would attract compensation of at least If the injury results in death, a bereavement payment award may be made to spouse or parents if the victim is under the age of 18 and never married. BASIS OF DECISIONS 3.8 All such circumstances as appear relevant must be considered by the Compensation Agency in making its decision. The courts interpret this phrase widely, to include anything relevant to the decision to make an award of compensation, even if unrelated to the crime or injury itself. For example, it might include an applicant s conduct after the injury All decisions are taken on the balance of probabilities. TIME LIMITS 3.10 No compensation will be paid unless: the offence is reported to the RUC within 48 hours; a notice of intention to claim compensation is served on the Agency within 28 days of the offence; 8 and the application itself is made within 3 years of the offence, or three years of the victim s 18th birthday if he was under 18 at the time of the offence. 9 REDUCTION OR REFUSAL OF COMPENSATION 3.11 Compensation will be refused or reduced in certain circumstances. The government has consistently said that State compensation is intended for innocent or deserving victims, and the provision of compensation by the state must be balanced by the recognition of responsibilities and obligations by those seeking compensation The grounds for refusing or reducing compensation include the conduct or character of the victim (and the applicant, if a different person). Thus for example, compensation may be reduced or refused where: the victim s provocative or negligent behaviour contributed to the injury; or the victim or applicant has criminal convictions which are indicative of [his] character and way of life

6 3.13 A problem particular to Northern Ireland has arisen with regard to interpreting provocative or negligent behaviour in the case of punishment attacks carried out by paramilitaries. It has been noted that during the 1980s There was some judicial support for the view that a person who chose to commit criminal offences in an area where this was likely to, and did, lead to a beating or shooting could, in appropriate circumstances, be guilty of provocative or negligent behaviour which required compensation to be reduced. But the issue appears to have been settled in favour of such applicants by the case of Bradley v Secretary of State [1992] 3 BNIL 22. Mr Justice Sheil explained that there was no evidence that those who had carried out [a punishment shooting] were provoked, in the legal sense, into doing so; nor could he see how the applicant s role [in criminal activity] could be said to amount to negligent behaviour which contributed to his being beaten and shot Compensation must normally be refused absolutely where the victim or applicant: has been a member of any unlawful association at any time whatsoever; has been engaged in any act of terrorism at any time; or has failed to comply with all reasonable requests for assistance with the identification and prosecution of the offender Where membership of an unlawful association or engagement in terrorism excludes an applicant from compensation, the Secretary of State nonetheless has a discretion to allow compensation, where it is in the public interest so to do. This discretion has been rarely exercised. 14 It was not exercised, for example, in a recent case in which a 36-year old bystander was partially paralysed in a shooting incident in His application for compensation was refused because in 1977, when aged 18, he was convicted of offences arising from involvement in a petrol bombing. His appeal failed, and judicial review was refused earlier this year. The compensation which his paralysis might have attracted was estimated at nearly 1million. 15 THE COMMON LAW ASSESSMENT OF COMPENSATION 3.16 Compensation is calculated on the basis of the common law principle the same principle that the courts use to decide damages in civil claims such as road accidents. The core objective of the common law principle is that the victim be returned to the position he would have been in had the injury never been suffered, insofar as can be done by the payment of money. Unlawful association means any organisation which is engaged in terrorism, and includes organisations which are proscribed under the Northern Ireland (Emergency Provisions) Act

7 THE COMPENSATION AGENCY AND APPLICATIONS FOR COMPENSATION 3.17 The Compensation Agency, an executive agency of the NIO, carries out the Secretary of State s functions in relation to the 1988 Order. In particular, it receives and processes applications for compensation. It processed approximately 11,000 claims in All applications are decided on the balance of probabilities. The applicant may appeal to the County Court The Compensation Agency encourages prospective applicants to consider carefully whether they should obtain the services of a solicitor. 18 If a claim is successful, reasonable legal costs and medical expenses are paid by the Compensation Agency The Agency has approximately 125 staff. 19 It achieved Investors in People reaccreditation in March In addition to criminal injuries compensation, it also deals with the criminal damage and emergency provisions compensation schemes COMPARISON WITH GB 4.1 A criminal injuries compensation system also exists for GB. Although similar to the NI system, it applies a tariff for calculating compensation rather than applying the common law principle described above. Under the tariff, specific injuries are listed against specific amounts of compensation which they will attract. 4.2 Damages for pain and suffering in Northern Ireland tend to be higher in Northern Ireland than in GB. This has been attributed to the later abolition of jury trial in personal injury cases here. 22 The judges followed the levels of damages set by juries. The disparity was expressly challenged in 1988, when a defendant company appealed the decision of a trial judges to award 75,000 damages for pain and suffering to an employee injured through exposure to asbestos. The defendants appealed on the ground that this was more than twice the amount that would have been awarded in England and Wales. The Lord Chief Justice of Northern Ireland refused that argument, rejecting the suggestion that our calculations of general damages are wrong if they do not conform to standards in other jurisdictions since Northern Ireland, like Scotland and the Republic of Ireland, constitutes a separate legal jurisdiction with its own judicial and social outlook

8 4.3 The GB tariff was set at the levels of compensation being awarded by the courts when the tariff was introduced in Compensation for criminal injuries is therefore lower in GB: see figure 1. Nonetheless, it has been commented that arrangements in Great Britain, let alone in Northern Ireland, are generous to victims in comparison to arrangements prevailing in other jurisdictions. 25 FIGURE 1: COMPENSATION PAID IN GB AND NI, Average award ( ) NI GB Total compensation paid ( m) NI GB Compensation per 100,000 population ( m) NI GB Source: Extracted from Report of the Review of Criminal Injuries Compensation in Northern Ireland, Table It is also interesting to note that, while there is a lower incidence of reported violent crime per head of population in NI than in GB, 26 considerably more claims for compensation are made: see figure 2. It has been speculated that factors involved in this disparity may include the following: violent crimes, particularly terrorist crimes, may cause more serious injuries in NI; NI citizens may be more aware of the right to claim compensation than GB citizens; legal aid and assistance is available in NI but not in GB. 27 FIGURE 2: NUMBER OF COMPENSATION CLAIMS PER 100,000 POPULATION OF GB AND NI Total number of claims NI 9,444 9,563 12,278 GB 73,473 75,667 77,036 Number of claims per 100,000 population NI GB Source: Extracted from Report of the Review of Criminal Injuries Compensation in Northern Ireland, Table 6-5 -

9 5. REVIEW BACKGROUND 5.1 In 1997 the Prime Minister felt that insufficient attention had been paid to those who had suffered during the Troubles. 28 In November 1997, the Secretary of State appointed Sir Kenneth Bloomfield KCB as the Northern Ireland Victims Commissioner. His report, We Will Remember Them, 29 was published in April It included a recommendation that there should be an objective, independent and wide-ranging review of the fitness for purpose of the compensation system. 5.2 In August 1998 Sir Kenneth was appointed to lead the Review of Criminal Injuries Compensation in Northern Ireland ( the Review ). The Review was asked to advise the NIO on the fitness for purpose of criminal injuries compensation arrangements in Northern Ireland in the light of the experiences of victims of terrorist violence, with a view to a new statutory scheme being devised. 30 REPORT OF THE REVIEW 5.3 It presented an extensive report to the Secretary of State in June Amongst its conclusions was the comment that, in relation to the claims of the victims of terrorism, Criticisms included perceived inadequacy of the ultimate award, ineligibility for compensation to which they had felt entitled, lack of support in or advice about the process, lack of transparency about one s entitlement, substandard service and scant courtesy from some solicitors and others, and resentment of being caught up, after deep personal trauma, in adversarial legal processes. In some at least of these cases what came across very strongly was a profound sense of powerlessness, of being driven along, at a time of psychological trauma, by an impersonal machine moving mysteriously towards an unpredictable end The Review also commented that it is of the greatest importance to remember that compensation is just one of a range of instruments which the state and society can deploy in support of those who have suffered from criminal violence. 32 RECOMMENDATIONS OF THE REVIEW 5.5 The Review made 64 specific recommendations. 5.6 They included changes to the provisions excluding persons from compensation because of events in their past, including: that not all criminal convictions should be considered instead rehabilitation of offenders, the length of time since conviction, and the seriousness of the offence should be taken into account; that where the criminal injury results in death, no regard shall be had at all to any convictions of the victim, although convictions of the applicant should continue to be taken into account;

10 that the automatic disqualification on the grounds of engagement with terrorism should be removed, to be replaced with a provision allowing such engagement to be considered; and that where the criminal injury results in death, no regard shall be had at all to any terrorist engagement of the victim, although engagement of the applicant should continue to be taken into account Its other recommendations included: that a partial tariff system should be introduced it should, however, apply only to compensation for less serious injuries, while the common law principle should continue to apply to compensation for more serious injuries; 35 the tariff should be based on existing current levels of awards in NI, rather than being identical to that in force in GB (which would provide lower amounts); 36 that the government should not pay the costs of successful applicants in claims for less serious injuries, but instead fund Victim Support (NI) to assist applicants, thereby reducing the need for lawyers to be involved and reducing costs (the government should continue to pay the reasonable costs of a successful applicant in a claim for compensation for more serious injury); 37 that mental injuries should include injuries suffered whether or not the applicant was present when the offence was committed; 38 that the bereavement payment award should be renamed a bereavement support payment so as to more accurately represent its purpose and avoid offence, and should be increased both in amount and in the classes of persons to whom it is available; 39 that the time limit which requires a claim to be made within 3 years of the injury is so strict as to cause injustice, and should therefore be changed so as to allow justifiably late applications, particularly by adults in relation to childhood injury and for circumstances such as those in the cases of the disappeared. The normal time limit should then be reduced to 2 years; 40 and that the Compensation Agency should have an internal review system, allowing a dissatisfied applicant to have a decision reconsidered, rather than automatically requiring it to be appealed to the courts. 41 There should, however, continue to be a right of appeal to the courts. 6. THE PROPOSALS 6.1 The NIO considered and consulted on the report of the Review and published a detailed response in July It accepted most of the recommendations, and has now published its proposed draft legislation. It intends to implement the draft Order and Scheme by 1 April This section examines some of the main proposals

11 A TARIFF SCHEME FOR ALL CLAIMS 6.3 The NIO proposes to introduce a Tariff setting out the compensation attached to specific injuries. These values will be based on current Northern Ireland averages (which are in most cases higher than awards in GB). 6.4 The Tariff ranges from 1000 for multiple minor injuries to 280,000 for permanent brain damage. As regards the more serious injuries listed in the Tariff, the scheme does not prevent additional compensation being made for loss of earnings, the cost of medical care or other consequential costs. 6.5 The Tariff applies to all injuries, contrary to the recommendation of the Review. The common law principle will not be used to assess any injury. 6.6 Members may wish to consider whether the common law principles or a tariff provides a more or less equitable mechanism for determining the appropriate amount of compensation. Members may also wish to consider whether a tariff might provide simplicity, added certainty, and control over costs. Members may wish to consider whether or how often the tariff should be reviewed, and whether it should be indexlinked. COMPENSATION TO BE REDUCED BY OTHER PAYMENTS 6.7 The NIO proposes that all awards above and beyond the tariff payment (for example loss of earnings or medical expenses) should be reduced to take account of: relevant social security or other state benefits; relevant insurance payments; relevant pension payments; compensation awards from GB or other countries; or damages awarded by a court in respect of the same injuries. 44 CASES MAY BE REVIEWED OR RE-OPENED 6.8 Once a final payment has been made, the Compensation Agency may nonetheless re-open any case and make a new decision if the victim s medical condition changes materially in a way that would make the original award an injustice. This will normally only occur within 2 years of the date of the Compensation Agency s final decision. 45 UNCERTAINTY AS TO WHERE THE INJURY WAS SUSTAINED 6.9 The current law requires that the injury be sustained in NI. The NIO proposes that, where it cannot be established whether the injury was sustained in Northern Ireland or in the Republic of Ireland, the injury shall be deemed to have been sustained in Northern Ireland if the person was ordinarily resident in Northern Ireland when the injury was sustained This proposal goes beyond a related recommendation made by the Review. It recommended that compensation be available, either from the Compensation Agency or the equivalent body in the Republic of Ireland, when it cannot be proved - 8 -

12 which side of the Border the offence occurred but only regarding injuries resulting in death. 47 APPEALS 6.11 An independent Criminal Injuries Compensation Appeals Panel for Northern Ireland will be created to hear appeals from decisions of the Compensation Agency. There will be no appeal from a decision of the panel, 48 although an applicant could nonetheless take an application to the High Court for judicial review of its decision. WITHDRAWAL OF PAID LEGAL ASSISTANCE, AND PROVISION OF FUNDING TO VOLUNTARY ORGANISATIONS TO PROVIDE FUNDING 6.12 The NIO proposes to withdraw paid legal assistance from applicants. Legal costs incurred by an applicant in his application or any appeal must be met from his own pocket. Instead funding will be provided to Victim Support (NI), which will assist victims and their families in making applications Members may wish to consider what saving will be made by this exchange. Members may wish to consider whether legal professionals, the voluntary sector, or a combination of both is best placed to assist victims. Members may wish to consider whether the variety of other services provided by Victim Support (NI) complement the provision of assistance in pursuing claims for compensation. Members may wish to consider how an applicant will meet the costs of any appeal to the Appeals Panel or a judicial review. WIDER DEFINITION OF MENTAL INJURY 6.14 The NIO proposes to remove the requirement that a person claming compensation for mental injury be present at the scene of the crime, 49 in line with the recommendation of the Review. WIDER ELIGIBILITY FOR BEREAVEMENT AWARDS 6.15 The NIO proposes to replace the bereavement payment award with a bereavement support payment, as recommended by the Review. 50 The amount payable is also increased (from the current amount of 7,500 to a spouse or, where the victim was under 18 years of age and never married, to parents), to: 12,000 for a spouse or partner, including a same sex partner, and 5,500 for each parent or child of the deceased An earlier NIO proposal 51 to subject the total of these payments to a maximum total of 50,000 in the case of any one deceased appears to have been dropped Additional compensation is available where an applicant was financially or physically dependent on the deceased

13 TIME LIMITS 6.18 The NIO proposes to make time limits more flexible. For example, the time limit for making a claim is to be reduced from 3 years to 2 years, but the Secretary of State is given a discretion to waive the limit where it is in the interest of justice to do so The NIO also proposes special and limited provision for past victims of child sex abuse, who cannot claim because of the current statutory time limits. A claim under the new scheme will be permitted, but only if made within one year of the new scheme coming into force Members may wish to consider whether it is fair to provide this degree of retrospective effect for the victims of child sex abuse, but not other offences, such as physical violence against a child or sexual offences against an adult. Members may also wish to consider whether and how victims of child sex abuse will become aware that they have one year to make a claim. Members may wish to consider whether the draft Scheme should make similar provision for persons (eg parents) who suffer mental injury due to discovering that their child has been subjected to sexual abuse. PREVIOUS ENGAGEMENT IN TERRORIST ACTIVITY, AND PREVIOUS CONVICTIONS 6.21 The NIO proposes to repeal the provisions that expressly exclude a person from compensation due to engagement in terrorism. Instead, the draft Scheme provides that the applicant s character may make it inappropriate to provide compensation. 54 That character is to be shown by: any convictions, excluding those which are regarded as spent under the Rehabilitation of Offenders (Northern Ireland) Order 1978; and evidence available to the Secretary of State No express mention is made of engagement in terrorism, although it is possible that evidence available to the Secretary of State would include information on such engagement This would appear to be in line with the recommendation of the Review. 7. OTHER SERVICES FOR VICTIMS 7.1 Financial compensation is only one way in which the State can support victims and recognise their suffering. The Belfast Agreement recognised the importance of victims suffering and declared that an acknowledgement of that suffering was an essential part of reconciliation in Northern Ireland. 55 Victims can be amongst the most socially excluded of citizens. 7.2 Members therefore may also wish to consider the other work performed by government and voluntary sectors in the field. In particular, members may wish to consider the work of the Victims Liaison Unit of the NIO and the Victims Unit of OFMDFM. OFMDFM is currently conducting a consultation on a cross-departmental Victims Strategy, which will focus on providing practical support and better services to the victims of conflict. 56 A separate Research Paper on that consultation is available from Research and Library Services

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